Gersten v Minister for Immigration & Multicultural Affairs

EXTEMPORE REASONS FOR JUDGMENT 1 WILCOX J: Two matters are before the Court and have been heard together. 2 In each matter the applicant is Joseph Gersten, who is apparently a citizen of the United States of America. As I understand the situation, Mr Gersten is, or at least was, a legally qualified lawyer practising in the State of Florida, in the United States of America. Mr Gersten has been in Australia for some years. There has been litigation between himself and various agencies of the Australian Government concerning a number of issues. 3 The two applications now before the Court are brought by way of appeal, on a question of law, from decisions of the Administrative Appeals Tribunal. In each case the Tribunal was concerned with claims for exemption made by agencies of the Commonwealth Government in respect of applications for disclosure of information under the Freedom of Information Act 1982. The Tribunal was constituted, in respect of both matters, by Deputy President B J McMahon. 4 The first decision, in point of time, was given on 21 July 1999. It related to an application for disclosure made by Mr Gersten to the Minister for Immigration and Multicultural Affairs. The second decision was given on 1 November 1999. It related to disclosure of documents held by the Australian Federal Police. 5 The application relating to the Minister for Immigration and Multicultural Affairs involves only one claim for exemption; namely, that contained in s33(1)(b) of the Freedom of Information Act. This provision is as follows: "33(1). A document is an exempt document if disclosure of the document under this Act: … (b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth." 6 Five documents were identified as being the subject of this claim for exemption. Mr McMahon rejected the claim in respect of all five documents. In his reasons for decision, Mr McMahon described the documents in this way: "The core documents (items 1, 2, 9, 10 and 11) have much in common. Item 1 is described as a confidential report from the Federal Bureau of Investigation (FBI)(apparently an agency of the United States Department of Justice) dated 10 May 1995. It is an intelligence report relating to the applicant. Like all police intelligence reports, it contains material which may or may not ultimately be found to be true. It purports to be a summary of information gathered by the FBI relating to activities, which are said to have some connection with the applicant. Document 2 is a restricted cable to the respondent dated 11 May 1995 providing details of how document 1 was to be provided. Document 9 is dated 11 April 1996 and is a copy of an internal FBI 'teletype' to the Director providing details of investigations in relation to the applicant. The information contained in the document is identical with the information contained in document 1. Document 10 is a computer print out from the US Criminal Justice Information System, relating to the applicant. Document 11 is a typed copy of material apparently extracted from document 1 and appearing upon its face to have originated from the FBI." Mr McMahon held that these documents were exempt pursuant to s33(1)(b) of the Act. 7 The Deputy President indicated that the way in which the documents came into possession of the Minister was not established beyond question and referred to evidence given by Sergeant Greenaway of the Australian Federal Police. Mr McMahon concluded it was "more likely than not that the information was supplied by the FBI to the respondent in connection with the visa application". He went on to say: "Whatever the provenance of the document and its associated documents, however, the element of confidentiality is clear from its contents". Mr McMahon then said this: "There is no public interest test to be satisfied under paragraph 33(1)(b) whether or not a so-called conclusive certificate is issued. If disclosure of a document would divulge any information or matter communicated in confidence by an authority of a foreign government to an authority of the Commonwealth, then the document will be exempt. Confidentiality can be established either by way of an express contract or stipulation imposed by the giver of the information, or by implication where it will be inferred from the circumstances surrounding the communication. Contrary to a submission by counsel for the applicant, there is no necessity for any international treaty or other obligation-creating relationship to exist in order that a communication between agencies of the two governments should be regarded as confidential. Observations to this effect were made in Re Maher and Attorney General's Department (1985) 7 ALD 731 and in Smith Kline and French Laboratories (Aust) Ltd v Department of Community Services and Health (1991) 28 FCR 291 at 302. In that case, a Full Court observed in relation to the general principles of confidentiality: 'In many circumstances, that suggested test will produce a proper result, but the circumstances in which confidential information is supplied may vary widely. To determine the existence of confidentiality and its scope, it may be relevant to consider whether the information was supplied gratuitously or for a consideration; whether there is any past practice of such a kind as to give rise to an understanding; how sensitive the information is; whether the confider has any interest in the purpose for which the information is to be used; whether the confider expressly warned the confidee against a particular disclosure or use of the information - and, no doubt, many other matters.' On any of the tests in the above quotation propounded by their Honours, the status of document 1 and other documents derived from and referring to it must be considered to be confidential. The information contained in the core documents is of such a nature and of such obvious sensitivity that it must be considered to have been communicated in confidence, no matter what the circumstances were which led to the receipt of the documents by the respondent. Counsel for the respondent submitted that because the information contained in document 1 was at least 3 years old, it might no longer be confidential. Paragraph 33(1)(b) deals with the communication of information in confidence. If at the time the information was communicated it can be shown to be on a confidential basis, then, in my view, the test set out in the paragraph will have been met. The time at which one should examine whether circumstances point to confidentiality is the time at which the information is communicated. On the face of the document, having regard to the purpose of the communication, there can be no doubt that it was given in confidence." 8 Counsel for Mr Gersten do not challenge the approach taken by Mr McMahon, save in one respect. Counsel say the words, "in confidence", which are contained within para (b) of s33(1), import into the decision to be made by a person considering a claim for exemption the principles developed by the equity courts in respect of breach of confidence. In particular, counsel refer to Lion Laboratories Ltd v Evans (1984) 3 WLR 539, and Attorney General of the United Kingdom v Heinemann Publishers (1987) 8 NSWLR 341. According to counsel, material supplied by a foreign agency to an agency of the Australian Government cannot be regarded as being in confidence if it is "tainted in some way". 9 When I inquired what counsel meant by "tainted", they replied "the document would be tainted if it was sent in bad faith or if it was based on false information". Counsel agreed it followed that a person called upon to determine whether a particular document received from a government agency falls within s33(1)(b) is required to consider the correctness of the information it contains and the motive of the person or persons responsible for its coming into existence. It should be noted that counsel were not content to say the relevant question was the motive of the author of the document. No doubt this was because a document might be created by a person who occupied a relatively low position in a bureaucratic hierarchy, and who had no reason to doubt the correctness of the information it contained or the good faith of the person who was in charge of the matter. Counsel's proposition is that the relevant inquiry concerns the motive of the person who instigated the action that led to the document coming into existence. 10 One only has to state the proposition to realise the unlikelihood that Parliament had it in mind when enacting s33(1)(b). If applied to this case, that proposition would have required the FOI decision-maker, in the Department of Immigration and Multicultural Affairs, to form a view about the motives of the people, apparently senior officers of the United States government, who caused the opening of communications with the Australian Government in respect of Mr Gersten. It would be impossible for the decision-maker to do that. 11 I do not think there is any scope for importing into s33(1)(b) the equitable principles relating to breach of confidence. The paragraph recognises that there is a public interest in the Australian government being seen by foreign governments, and their agencies, as a reliable recipient of confidential information; a government that will respect the status of confidential information that is supplied to it in the normal course of business. It would be neither possible nor appropriate for the Australian government to make judgments about the motives with which the information is supplied. 12 I have looked at the documents. They are routine communications between an officer of the United States Embassy in Canberra and officers of the Australian Federal Police. There is nothing, on their face, to suggest otherwise than that they were supplied in confidence, as Mr McMahon found. I see no reason to read down the clear words of the paragraph. Accordingly, I reject the submission relating to s33(1)(b) of the Act. 13 A similar submission is made in respect of three documents that came from the file of the Australian Federal Police. They appear to have been supplied for legitimate purposes. It is impossible to fix the decision maker with a duty to go behind that appearance. 14 The other issue raised in connection with the application for disclosure made to the Australian Federal Police involves the ground of exemption set out in s40(1)(d) of the Freedom of Information Act. This provision is as follows: "40(1)Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: … (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; … Subsection (2) reads: "This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest." 15 As is submitted by counsel for Mr Gersten, the effect of subs (2) is that, in a proper case, the decision-maker, or the Administrative Appeals Tribunal on appeal, might decide the document should be released, notwithstanding that it falls within para (d) of s40(1). Mr McMahon did not suggest otherwise. He noted the nature of the documents, and that they were communications between officers of the Australian Federal Police. He referred to the terms of s40(1)(d) and said: "Disclosure of these documents on the evidence of Agent Hughes would inflict damage on the respondent's relations with overseas law enforcement authorities such as the FBI. Mr Hughes' evidence went to the extent to which the respondent relies upon good relations with these authorities and the way in which these relations would be affected by disclosure of documents such as those under consideration. This evidence was not really challenged. There was nothing in his cross-examination which would give rise to any doubt about the validity of his evidence. This was that a disclosure of the material would result in damage to the respondent's working relationships with foreign law enforcement bodies which are essential to the AFP maintaining and carrying out proper and efficient police services. That being so, disclosure would have a substantial adverse effect on the proper and efficient conduct of its operations. The evidence of Agent Hughes is sufficient to support the respondent's contention that this effect would be both adverse and substantial, irrespective of the nature of the information contained in the communications. There is a public interest test in subsection (2). In my view, there is no public interest favouring disclosure of this material, nor has the applicant attempted to identify any such public interest." 16 I note that Mr McMahon accepted the evidence of Mr Hughes as to the damage that would be occasioned by release of these documents. He did that with the benefit of having inspected the documents themselves. Mr McMahon commented that Mr Hughes' evidence was "not really challenged". This was a finding of fact and the facts are for the Tribunal to determine. 17 Contrary to a suggestion made to me by counsel for Mr Gersten, Mr McMahon bore in mind the public interest exception contained in subs (2) of s40. The applicant had not attempted to identify any relevant interest. Notwithstanding that, Mr McMahon himself considered whether there was a public interest in disclosure of the documents. He found there was none. 18 I see no error of law in the conclusions reached by the Tribunal in respect of either matter. In each case, an order should be made that the application be dismissed and the applicant pay the costs of the relevant respondent. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.